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Balmukand Vs. the State of M.P. anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 300 of 1980
Judge
Reported inAIR1982MP38
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 4 - Order 43, Rule 1
AppellantBalmukand
RespondentThe State of M.P. anr.
Appellant AdvocateD.K. Katare, Adv.
Respondent AdvocateS.W. Swamisaran, Govt. Adv.
DispositionRevision dismissed
Excerpt:
.....on 24-10-1979, the state government filed the petition that the trial court's initial order of temporary injunction had become inoperative and ineffective due to the plaintiff's failure to comply with the condition viz. if he could succeed in getting the original order for temporary injunction vacated due to the plaintiff's failure to deposit the cash amount, which was the condition precedent for the effectiveness of the order for temporary injunction, easementary right which he is trying to protect against the claim as laid, would not stand (in? naturally, hence, rajmal had a subsisting interest in the trial court's interlocutory orders both under rule 1, order 39, cpc and later under rule 4 order 39 cpc, and he being also a party aggrieved and dissatisfied with the trial court's..........to be deposited by the applicant-plaintiff within a month from the date of the passing of order of temporary injunction (i. e. 21-8-1978). on 2-9-1978, the present applicant-plaintiff filed another application in the trial court for modifying the conditions in the trial court's earlier orderof temporary injunction dated 21-8-1978 to the extent that instead of depositing the auction money in cash, he may be permitted to furnish security for the said amount. this application was al-lowed by the trial court without hearing the other side viz., the defendant-state. later, on 24-10-1979, the state government filed the petition that the trial court's initial order of temporary injunction had become inoperative and ineffective due to the plaintiff's failure to comply with the condition viz......
Judgment:
ORDER

M.D. Bhatt, J.

1. This is the plaintiff-applicant's revision against the lower appellate Court's order directed the trial Court to decide afresh the plaintiff's application under Order 39 Rule 4 C. P. C. after duly hearing the other side.

2. The present applicant-plaintiff had filed a suit against the State Government (present non-applicant No. 1) in the trial Court for declaration of his right and title as Bhumiswami to certain agricultural land. The non-applicant No. 2 Rajmal was allowed to be joined in the suit as the defendant No. 2 on his application under Order 1 Rule 10 C. P. C. in view of his alleged right of easement in the land in question. During the pendency of the suit, the present applicant-plaintiff had filed an application under Order 39 Rules 1 and 2 C.P.C. for restraining the defendant No. 1 State from interfering in the plaintiff's possession till the disposal of the suit, plaintiff's possession of the land in dispute for the period from 1972 to 1976 was stated to be in pursuance of the annual auction of the suit land viz. the Beed chM. The trial court granted the termporary injunction as prayed for on the condition that the plaintiff shall deposit auction money with the defendant No. 1 State for the period from 1976 and onwards, failing which, the injunction Order shall stand infructuous and ineffective. It was further directed that in compliance of this Order, all arrears of auction money will have to be deposited by the applicant-plaintiff within a month from the date of the passing of Order of temporary injunction (i. e. 21-8-1978). On 2-9-1978, the present applicant-plaintiff filed another application in the trial Court for modifying the conditions in the trial court's earlier Orderof temporary injunction dated 21-8-1978 to the extent that instead of depositing the auction money in cash, he may be permitted to furnish security for the said amount. This application was al-lowed by the trial Court without hearing the other side viz., the defendant-State. Later, on 24-10-1979, the State Government filed the petition that the trial Court's initial Order of temporary injunction had become inoperative and ineffective due to the plaintiff's failure to comply with the condition viz. deposit of the auction money for the period from 1976 and onwards, within the stipulated time. This application was dismissed by the trial Court. The State did not prefer appeal against this. On the contrary, the defendant No. 2 Rajmal preferred the appeal against the trial Court's said Order dated 30-10-1979 on the ground that the Order of temporary injunction was wrongly modified in illegal manner without affording the opportunity of hearing to the other side. The appeal was vehemently resisted by the present plaintiff, firstly on the ground that the appeal was not tenable and, secondly on the ground that the defendant No. 2 Rajmal had no locus standi to file the appeal.

3. The lower appellate Court negatived both the objections of the respondent-plaintiff. It was held that trial Court's subsequent Order modifying the conditions of the initial Order of temporary injunction was covered under Order 39, Rule 4 CPC, and as per Order 43 Rule 1 CPC, such an Order was made appealable. The lower appellate Court, further, held that since the Order modifying the initial Order of temporary injunction had been passed by the trial Court without hearing the opposite side (which obviously included the defendant No. 2 Rajmal also) the trial Court had acted erroneously. It was, hence, implied in the lower appellate Court's Order that Rajmal being one of the opposite parties, was naturally entitled to file the appeal. The lower appellate Court, consequently allowing the appeal and setting aside the trial Courts' Order dated 2-9-1978, directed the trial Court to decide the plaintiff's application afresh in the matter of his claim for modifying the conditions of the Order of injunction after affording due opportunities of hearing to the other side viz., the de-fendants. Now, it is against this Order that the present revision has been filed by the plaintiff.

4. The learned counsel for the present applicant-plaintiff has urged before me the same particular grounds which were taken in the Court below. It is urged that Rajmal had no locus standi to file the appeal in the lower appellate Court and that the trial Court's Order modifying the conditions of the initial Order of temporary injunction was not covered under Order 39 Rule 4 CPC, so as to entitle any aggrieved party to file the appeal under the provisions of Order 43 Rule 1 CFC.

5. 1 have considered the points pressed by the applicant's learned couns 1. The first point to be considered is whether the trial Court's Order modifying the conditions of initial Order of temporary injunction, was covered under Rule 4 of Order 39 CPC. A plain reading of Rule 4 ibid leaves no room for doubt that 'any Order for injunction may be discharged or varied or set aside by the Court on an application made thereto by any party dissatisfied with such Order'. What the trial Court had actually done by its subsequent Order dated 2-9-1978 was to vary the conditions of Order of injunction which it had initially imposed. Original condition in the initial Order for temporary injunction was that the plaintiff should deposit the amount in cash equivalent to auction money for the period 1976 till to date and onwards. The variation in the condition, subsequently made, vide Order dated 2-9-1978 was to the effect that instead of deposit of the amount in cash, plaintiff was permitted to furnish security for such amount. Such variation was obviously covered specifically under Rule 4 of Order 39 CPC, and under no other specific provisions of the C. P. C. Order, being thus, under Order 39 Rule 4 CPC, has been made appealable in accordance with Clause (r) under Rule 1 of Order 43 CPC. The lower appellate Court was, therefore, right in holding that the appeal as laid, was tenable.

5A. As to the question whether the defendant No. 2 Rajmal had or had no locus standi to file the appeal, it is no doubt true that the party directly aggrieved by the trial Court's Order was the defendant No. 1 State, inasmuch as, it was deprived of deposit of cashamount which was the condition in the initial Order for temporary injunction, Defendant No. 1 State had chosen, not to file the appeal. Instead, the defendant No. 2 Rajmal filed the appeal. Though he was not directly adversely affected; but all the same, his indirect interest in the matter of temporary injunction cannot be denied. He had joined in the suit on his own motion, claiming to have a easementary right in the subject matter of the suit viz., the land in question. Order of temporary injunction naturally affects his right too. If he could succeed in getting the original Order for temporary injunction vacated due to the plaintiff's failure to deposit the cash amount, which was the condition precedent for the effectiveness of the Order for temporary injunction, easementary right which he is trying to protect against the claim as laid, would not stand (in?) jeopardy at least till the disposal of the suit. Naturally, hence, Rajmal had a subsisting interest in the trial Court's interlocutory Orders both under Rule 1, Order 39, CPC and later under Rule 4 Order 39 CPC, and he being also a party aggrieved and dissatisfied with the trial Court's subsequent Order of modification of the terms of original injunction, was fully competent to file the appeal before the lower appellate Court, even though the State Government had failed to do so, for the reasons best known to them.

6. Now coming to the other points involved in the present revision petition, it may be observed that the lower appellate Court was fully right in holding that the trial Court had acted erroneously in not affording due opportunity of hearing to the other side viz., the non-applicants-defendants before passing the Order of variation under Rule 4 Order 39 C. P. C. Failure to provide such opportunity was obviously contrary to the principles of natural justice and fair play. Furthermore, it may be observed that in the matter of procedure to be followed under Rule 4, Order 39, CPC the second proviso to this Rule requires that no variation in the original Order, for temporary injunction passed after hearing both sides, can be made unless either it 'has been necessitated by a change in the circumstances or unless the Court is satisfied that the Order has caused undue hardship to that party'. It prima facie appears that the trial Court'sOrder, passed under Rule 4, Order 39 CPC was, cryptic, without fully and properly recording the existence of conditions as mandatorily enjoined by the second proviso to Rule 4 Order 39 CPC. Obviously, after the passing of the original Order of temporary injunction, there was no change in the circumstances, necessitating variation in the original Order. The only other condition for variation was the Court's satisfaction in the matter of undue hardship to the party concerned. This satisfaction too is not found to be duly recorded. In any case, the opposite party viz., the non-applicants-defendants had no opportunity and chance, to negative the existence of any circumstances necessitating or justifying the subsequent variation in the condition of, the original injunction Order. The lower appellate Court was, therefore, right in setting aside the trial Court's Order passed under Rule 4 Order 39 CPC and in directing the said Court in passing the Order afresh, after affording due opportunity to the defendants to oppose the plaintiff's subsequent application for making the, change in the conditions as stipulated in the injunction Order.

7. Plaintiff's revision being thus without any merit is dismissed. Parties to bear their own costs in the present revision.


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